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Some have concerns about possible bias in UND nickname case

FARGO -- Leigh Jeanotte "would hope" that North Dakota's Supreme Court won't be biased in any way about the Fighting Sioux nickname because four of its five members are University of North Dakota law school graduates.

"But you always wonder about that affiliation with UND and the athletics," said Jeanotte, director of American Indian Student Services at UND and an outspoken nickname opponent. "It just could taint something, I think, in a horrible way."

Legitimate or not, such concern exists among some nickname opponents hungry for an end to the issue, he said.

Despite his reservations, "My feeling is that they're going to be fair with this and any other item that they have to deal with," Jeanotte said.

The Supreme Court has received a notice of appeal from the attorney representing a group of Spirit Lake Sioux trying to stop the state Board of Higher Education from retiring the nickname before a November deadline set in a settlement with the NCAA.

The board voted 5-3 on Thursday to keep the nickname until the appeal is heard, and directed its attorney to request an expedited hearing before the state's highest court.

Chief Justice Gerald W. VandeWalle bristled Friday when asked whether it will be difficult for justices to set aside their UND connections when hearing arguments in a case that goes to the heart of the university's identity.

"You start with the presumption, apparently, that all the judges are on one side or the other," he said. "I don't know that. I have no idea what their position is on the issue."

"I'm not happy, very frankly, about the question because I think it raises issues about the credibility of the court," he added.

Of the four justices who hold law degrees from the UND School of Law, two of them, VandeWalle and Justice Daniel Crothers, also earned undergraduate degrees at UND. Justice Dale Sandstrom earned his bachelor's degree at North Dakota State University, while Justice Mary Muehlen Maring earned hers at what is now Minnesota State University Moorhead. Justice Carol Ronning Kapsner holds a bachelor's degree from College of St. Catherine in St. Paul and a law degree from the University of Colorado School of Law.

Justices normally decide whether to recuse themselves from cases, though the court's code of conduct calls for automatic recusal in certain situations, such as if a judge has a second-degree family relation with a party in the case, VandeWalle said.

In such situations, the court fills the chair with a trial court judge or a retired judge on active status.

That pool also is heavily populated with UND alums: 36 of North Dakota's 42 district judges - as well as more than 90 percent of the state's lawyers - are graduates of the UND law school, according to the winter issue of the school's alumni magazine, which features VandeWalle on the cover.

"We might have trouble finding five (judges) that weren't UND law school graduates," VandeWalle said.

The law school's faculty executive committee took a position on the nickname issue in March 2002, when it passed a resolution opposing the nickname and asking that all Native American team names and logos not be used by campus media.

Still, Jeanotte said he's concerned about the four justices' affiliation with the school. He pointed to Michael Sturdevant, the UND law school graduate and district court judge who reluctantly dismissed the nickname lawsuit that's now being appealed.

In his decision, Sturdevant criticized the board for its "disingenuous" approach to the nickname issue after a lot of tax dollars and hope had been invested in the settlement process, the Grand Forks Herald reported on Dec. 19.

VandeWalle said people don't always agree on what the law is, and if the result of a case isn't to their liking, they may fault the judge. But justices strive to decide cases on the letter of the law, he said.

"That is the standard, and we try to adhere to it as much as we can," he said.

"It's too bad that it reaches this type of high-visibility issue," he added, "because the court ends up trying to decide what the law is and not what the emotions are or what the results should be with regard to the basic issue, which is, if I understand correctly, not before the court."